AJ: And the main findings?
EM: The moment the state starts to situate rights within a group frame rather than an individual frame the outcome will likely be segregation, inequality and discrimination. The weakest will be left vulnerable, subject to abuse and discrimination. This is the main consequence of legal pluralism, whether weak or strong.
A key consequence of introducing weak legal pluralism and with it Islamic law in Western legal systems will be a stratified citizenry, involving two types of women: Western women who can enjoy their rights based on the state’s laws, and migrant women who cannot. The system in the UK has in effect created these two types of citizens; one enjoys equality before the law and the other does not because of their religious identity. These women suffer from the double discrimination syndrome: in addition to gender discrimination they are also denied access to their legal rights. Indeed, this stratification will only further cement the walls around the closed parallel societies existing in the UK.
In addition, the system is, de facto, legitimising polygamous marriages, and facilitating child marriage and forced marriage – all related to the type of Islamic jurisprudence implemented in the UK.
Most significantly for the cohesion and unity of society and the fight against extremism, soft legal pluralism has continued to separate minority groups from the wider society and has given Islamists a free hand in reinforcing their social control over closed communities. The issue is not only the use being made of the law by conservative clerics and imams. Islamists often control British sharia councils, and those working in the sharia councils often display the ideological and political features of Islamism.
AJ: You trace the roots of the support offered by some western liberals to the introduction of Sharia to what you call ‘the essentialist paradigm’. Can you explain what the central features of this paradigm are?
EM: The essentialist paradigm is characteristic of Western academic post-colonial and post-modern discourse and has dominated it for far too long. It treats people as belonging to homogeneous groups, essentialising their cultures and religions. It underestimates its own deleterious impact, as an academic and political discourse, on human rights. It discards the voices of people who it deems as being ‘not authentic’ representatives of a culture conceived as singular and unchanging.
Four features characterise the essentialist paradigm:
- It combines multiculturalism as a political process with a policy of soft legal pluralism, dividing people along into cultural, religious and ethnic silos, treating individuals differently on account of their ‘cultural differences,’ in the process setting them apart and placing them in parallel legal enclaves.
- It perceives rights from the perspective of the group: the group has rights, not the individuals within it. It insists that each group has a collective identity and culture, an essential identity and culture, which should be protected and perpetuated even if doing so violates the rights of individuals within the group.
- It is dominated by a cultural relativist approach to rights (in both its forms, as strong and soft cultural relativism), and believes that rights and other social practices, values and moral norms are culturally determined.
- It is haunted by the white man’s/woman’s burden caused by a strong sense of shame and guilt over the Western colonial and imperial past and a paternalistic desire to protect minorities or people from former colonies.
